A judge’s decision sentencing Graham James to two years in prison for repeatedly sexually abusing two junior hockey players in his charge was neither clear or rational, Manitoba’s Court of Appeal was told Monday.

The sentencing judge “erred in both her approach to sentencing and in her application of sentencing principles,” said Crown attorney Liz Thomson.

James pleaded guilty to repeatedly sexually assaulting former NHL star Theo Fleury and Fleury’s cousin Todd Holt between 1983 and 1994. He was sentenced last March to two years in prison, four years less than recommended by the Crown.

Thomson said the sentencing judge misapplied the totality principle, giving James too much credit for his 1997 conviction and 3 1/2 year sentence for similar offences.

The totality principle is invoked in cases where multiple convictions might result in sentences that could be considered “crushing.”

“If 10 more people come forward next year (and say James sexually abused them), do we go back to 1997 and say he got 3 1/2 years?” Thomson said.

Justice Freda Steel questioned what credit James should receive for the fact he has not reoffended in the years since his initial conviction.

Thomson said James’ high moral culpability, the “gravity” of the offences, and the harm to his victims outweighs any rehabilitation considerations.

“Rehabilitation is secondary (to denunciation and deterrence) for these types of offences,” Thomson said.

James’ lawyer defended the original sentence, saying it was “carefully considered” and legally sound.

James cooperated with police and never denied there were more victims, Evan Roitenberg said. James refused to specifically identify Fleury “out of respect” until he chose to come forward himself, Roitenberg said.

James believed he was involved in a “loving, consensual” relationship with his victims and only later came to recognize them as abusive, Roitenberg said.

“You are pushing a big rock up a steep hill if you want me to believe that,” said Justice Alan MacInnes.

“What happened here was incredibly egregious. Graham James was not just their guardian, he controlled their future. He knew that and he let them know that. He effectively destroyed them by this conduct.”

Thomson and Roitenberg spent much of their time debating what credit James should receive for “totality” and whether James should be ordered to serve consecutive or concurrent sentences for the two victims.

The appeal court has reserved its decision.

Holt said he suffered decades of torment before he had the strength to file charges against James in 2009.

“It took me 20 years for Graham James to get two years (in prison),” Holt said in a phone interview from Alberta. “It doesn’t fit the crime.”

Holt said he hopes media coverage of the James case will make it easier for victims who have suffered similar abuse to come forward and bring their abusers to justice.

“Too many people try to sweep it under the rug,” Holt said. “They live every day in fear... When you are stuck there, it’s hard to find peace.”

Greg Gilhooly was also abused by James but saw charges involving him stayed as part of a plea bargain between James and the Crown. Gilhooly said he was “disgusted” to hear Roitenberg complain about how James has been “villainized.”

James “is a monster, a convicted serial sexual offender,” Gilhooly said outside court.

“I’m not a ‘lock ‘em up and throw away the key’ kind of guy, but we have to wake up and deal with our monsters in a better fashion,” he said.

Timeline: The search for justice

JANUARY 1997: James convicted of sexually assaulting two teen hockey players, including former NHL player and Elkhorn native Sheldon Kennedy, and is sentenced to 42 months in prison.

FEBRUARY 1998: While still in prison, James convicted of sexually assaulting a third teen in 1971.

OCT. 14, 2009: Former NHL star Theo Fleury releases autobiography, Playing With Fire, alleging James sexually abused him as a teen.

JANUARY 2010: Fleury files criminal complaint against James with Winnipeg police.

APRIL 5, 2010: News of James’ pardon three years earlier sparks national outrage, prompts federal overhaul of pardon system.

MAY 13, 2010: Winnipeg police confirm they are investigating new sexual assault allegations against James.

OCT. 27, 2010: James — now living and working in Mexico — arrives in Winnipeg, is arrested and taken into custody.

DEC. 7, 2010: Judge agrees to release James on bail. James remains in custody several days before he is quietly released and moves to Montreal.

DEC 7, 2011: James pleads guilty to two counts of repeatedly sexually assaulting Fleury and another unidentified victim when they were teens.

MARCH 20, 2012: James sentenced to two years in prison, a sentence criticized by even James’ brother.

APRIL 12, 2012: Crown files appeal of James’ sentence, arguing Judge Catherine Carlson over-emphasized the significance of prior sentences for similar offences and erred in her assessment of the totality principle.

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Graham James saga

Sex criminal Graham James pushes a camera out of his way while making his entrance to court Tuesday, March 20, 2012. (CHRIS PROCAYLO/Winnipeg Sun)

Graham James (wearing a scarf and hood), who has admitted he sexually abused small boys, leaves court in Winnipeg. He is being escorted by Vanessa Gama (left) and lawyer Evan Roitenberg. Wednesday, Feb 22, 2012. Chris Procaylo - QMI Agency

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Former NHL player Theo Fleury at a news conference at 4play Sports Bar in Winnipeg. Fleury was sexually attacked by reviled homosexual child molester Graham James when James was his coach. James, who has already served prison time for numerous and bizarre sexual assaults on a series of small boys, was given a two year sentence earlier this week after pleading guilty to sexually attacking more boys he had been coaching. Winnipeg, Thursday, March 22, 2012. Chris Procaylo - QMI Agency

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A 1983 team photo of the Western Hockey League's Winnipeg Warriors before they relocated to Moose Jaw, Sask. Graham James (middle row, far right) was a scout with the team at the time and would later plead guilty to 350 counts of sexual assault against two players, including Sheldon Kennedy. Seated in the front row on the far left is goaltender Doug Lunney who went on to become the Winnipeg Sun's assistant managing editor. (Winnipeg Sun files)

Former NHL player Theo Fleury at a news conference at 4play Sports Bar in Winnipeg. Fleury was sexually attacked by reviled homosexual child molester Graham James when James was his coach. James, who has already served prison time for numerous and bizarre sexual assaults on a series of small boys, was given a two year sentence earlier this week after pleading guilty to sexually attacking more boys he had been coaching. Winnipeg, Thursday, March 22, 2012. Chris Procaylo - QMI Agency

qmi agency

Former NHL player Sheldon Kennedy talks to media outside the Winnipeg law courts after a sentencing hearing for disgraced former hockey coach Graham James on Wednesday, Feb. 22, 2012. Former hockey star Theo Fleury and his cousin Todd Holt, who were both repeatedly sexually abused by James, must wait weeks to learn if James will serve prison time for the offences. Kennedy, who was also abused by James, was at the courthouse to show support for victims. (Sebastien Perth, Winnipeg Sun)

Todd Holt arrives at court in Winnipeg to testify at the sentencing hearing of admitted child molester Graham James. Holt cried while describing the lewd acts he was subjected to as a young hockey player. He is accompanied by an unidentified woman. Winnipeg, February 22, 2012.

One of his victims, former NHL star Theo Fleury, said he has no faith justice will be served, no matter what the Manitoba Court of Appeal decides.

“I already know whatever happens on Dec. 3 with the Crown’s application to appeal the James sentence (will) result in an inadequate outcome because the current justice system is not structured to be effective and protect victims, survivors, victors and advocates of childhood sexual abuse,” Fleury wrote on his website Friday.

James himself won’t be present for the hearing. Though his lawyer wouldn’t confirm it, court documents show James has requested he not be required to be present at the hearing and no order has been made to transport him.